Beyond Mexico: How DHS rule changes may affect black immigrants

August 28, 2018

by Kadia Tubman, Yahoo News

When Phiwa Nkosi gave birth to her son nine years ago, she was handed a packet of forms to fill out the day she was discharged from Bellevue Hospital in Manhattan. A social worker had compiled the paperwork to apply for food stamps and the Women, Infants and Children nutrition program (WIC) and encouraged her to sign up for government benefits.

“It would’ve been great if I was able to say, ‘You know what? For the next couple of months, I won’t be working and [my expenses] would be paid by this,” said Nkosi (not her real name), 31, a South African-born DACA recipient. Before becoming a mother, she was a college student working multiple jobs to pay her way through school.

“Instead, my fiancé worked and we had a bit of a struggle. But we did it on our own,” she said. “We just bit that bullet because I didn’t want anything to do with the welfare system. It’s a negative thing for immigrants should you have the opportunity to change your [immigration] status in the future.”

The negative impact Nkosi refers to is the “public charge rule,” which requires officials to take into account whether an immigrant is “primarily dependent on the government for subsistence” in considering an application for adjustment to permanent resident status. It rarely leads to deportation, but it puts legal immigrants’ future status in limbo, and many choose to forgo benefits that could help them meet their needs.

And the rules are about to change, in a way that will discourage even more immigrants from using benefits. And black immigrants like Nkosi may be especially disadvantaged because they face the additional burden of the racially charged association of blacks with welfare.

“There’s already that narrative that’s been pushed for years about people of color, that they are ‘welfare queens,’” said Nkosi. “Now public charge is going to be seen like we only want to come here and live off of [taxpayers].”

Nkosi refused public assistance for herself, but felt she had no choice in getting Medicaid for her son. “I’ve been working and paying taxes,” said Nkosi, now a digital communications consultant running her own marketing and research firm. “I’ve never had welfare. I’ve never had cash from the government. But the only thing is that my child, for his health, needs to have health insurance. You can’t just have your child walking around without health insurance.”

The public charge rule takes into account an immigrant’s use or likelihood to use cash assistance like Supplemental Security Income (SSI), the Temporary Assistance for Needy Families (TANF) program and public assistance for long-term institutional care. Medicaid (other than for long-term care) hasn’t been considered, which is why Nkosi was comfortable enrolling her son.

A draft of revisions to the rule proposed by the Department of Homeland Security (DHS) and currently in review by the White House Office of Management and Budget, would cover a much wider range of benefits used by legal immigrants seeking lawful permanent resident (LPR) status. The scope of benefits would now include noncash benefits, like Medicaid for any purpose and other health, nutrition and noncash benefits like the Children’s Health Insurance Program (CHIP), Supplemental Nutrition Assistance Program (SNAP), the Special Supplemental Nutrition Program for Women, Infants, and Children (WIC), health care under the Affordable Care Act and even early education programs like Head Start.

In an email, a DHS official called noncitizen public benefit usage deeply unfair to U.S. taxpayers, adding that nearly 3 in 4 voters support requiring newcomers to be financially self-sufficient and not dependent on a public benefit.

The finalized draft of the proposed public charge rule is yet to be posted to the Federal Register, but leaked versions have left immigrants like Nkosi afraid that enrolling themselves and their children in federal public programs will have an adverse effect on their chances of getting a green card, let alone citizenship.

“The rule will affect Black immigrants differently than it would affect other immigrants,” Patrice Lawrence, national policy and advocacy director at the UndocuBlack Network, told Yahoo News. “They are already scared, whether they’re [undocumented] or not, that taking these services will mean that the government will look down on them.”

Lawrence and other lawyers and immigration advocates interviewed by Yahoo News regard the proposed changes to the public charge rule as a way to discourage immigrants from coming to the U.S. in the first place, or seeking permanent status.

“Since word of this draft memo has leaked out, there’s been a lot of panic among our clients,” said Leena Khandwala, supervising attorney of the Immigration Law Unit at the Legal Aid Society. “We’ve heard of people disenrolling their children from Head Start programs, people calling us and trying to decide between continuing to receive Medicaid, which is necessary to take care of their health, or thinking about whether they’d be eligible for permanent resident status. We see so many clients who are facing an extreme Hobson’s choice: Do I take care of my immediate needs, my health, my kids’ enrollment in school, things like that, or do I worry about my ability to remain in this country in the long term?”

Nkosi had long since made the tough choice for herself. “I’ve known for years that if you are someone using public assistance, like welfare, food stamps and monetary support from the government, you are likely to have an unfavorable decision when you try to change your immigration status,” she said. “I don’t have insurance. I avoided Medicaid for myself. I would rather go to public clinics when I need to and pay out of pocket. I chose that route to avoid this exact situation.”

Seventy-four percent of immigrants’ U.S.-born children are covered by Medicaid. And now if, according to drafts, the public charge rule considers an immigrant’s dependent family members, including citizen children, their application for status adjustment could be affected.

“It feels like if I want to adjust my status now, while trying to make sure that my child has access to proper health care, means I’ll be penalized for that,” said Nkosi. “Although my child is entitled to those benefits as an American and although I paid taxes for other people’s children to have that benefit, I cannot have that for my child?”

Some say yes, but no. “Paying taxes itself isn’t sufficient,” said Andrew Arthur, resident fellow in law and policy at the Center for Immigration Studies, which advocates for limits on immigration. “They are paying taxes, and that’s fine. But you also shouldn’t be dependent on the state for the care of either yourself or your dependents.”

Arthur continued: “You would expect that the adult would be able to provide for the child. If you can’t care for your children, the vast majority, the public, would say you’re a public charge because you’re not actually providing for your child. The proposal, in the way that it’s drafted, aligns immigration policy with the public perception of who is a public charge.”

This perception is what Susan Welber, staff attorney at the Legal Aid Society, said discourages legal immigrants from taking advantage of health care and nutritional support and the earned income tax credit, a consequence that “is a product of discrimination [whereby] people would be made to feel shame for accessing something that they are legally eligible for and is there to help them.”

“Many of the in-kind benefits the Trump administration is now suggesting should be part of the public charge calculus, for thousands of families, are work supplements needed to survive working in low-wage jobs” said Welber. “You can work 40 hours a week and still be living in poverty.”

Forty-eight percent of African immigrant-led homes and 51 percent of Caribbean immigrant-led homes receive public benefits, compared with 73 percent of Mexican and Central American-led homes, according to the Center for Immigration Studies. And while public charge is one of many factors considered for someone’s admission into the U.S. or ability to legally stay, the rule is applied on a case by case basis.

“We’re talking about where discretion is involved, and that’s what public charge will fall, where [bias] is involved,” said Stephanie Delia, managing attorney at City University of New York’s Citizenship Now Project. “Because there is going to be discretion, black immigrants are going to be affected more negatively based on the countries that are no longer getting, for example, temporary protected status, most of which are black immigrant countries. [This is] based on statements that certain countries are ‘s*** hole countries’ and on overpolicing of black immigrant communities. It all ties together to make it abundantly clear that we live in times that our administration is acting in a manner to punish black immigrants.”

Despite a drop in deportation last year, removals spiked for African immigrants, doubling for some countries.

“While African and Caribbean people make up such a small part of the immigrant population, they are overrepresented in deportation,” said Allen Orr Jr., a D.C.-based immigration attorney and second vice president of the American Immigration Lawyers Association (AILA). “The U.S. is not welcoming to immigrants in general. So anything that happens to the general population is exacerbated for people of color.”

Within the past year, the Trump administration has moved to end programs and policies protecting black immigrants. Temporary protected status (TPS), which is granted to immigrants from countries affected by natural disasters or war, is being terminated for Haiti (announced November 2017) and Somalia (announced in July), which is also one of the majority-Muslim countries on President Trump’s travel ban list. In March, the Trump administration announced a one-year phaseout of the Deferred Enforced Departure (DED) program, which provided extended legal residency to Liberians who previously had TPS after fleeing a war-torn country. Meanwhile, the future of Deferred Action for Childhood Arrivals (DACA), which protects immigrants like Nkosi brought to the U.S. illegally as children from deportation, is currently being battled out in federal court.

“Black immigrants are at the intersection of TPS, DED, DACA and the Muslim ban,” said Lawrence, who looks to the potential end of these protections as having a “ripple effect” on black immigrant communities.

“You’re already targeted for being black in this country,” said Nkosi. “And then on top of that you’re crucified because this country is anti-immigrant.”

While black immigrants feel especially targeted by anti-immigration policies, when it comes to health specifically, Amanda Lugg, advocacy director at African Services Committee, said the changes to public charge are “literally life and death.”

“It’s not whether you can get a school lunch or not,” said Lugg, who works primarily with African immigrants. “The fear, the absolute real fear is coming from our HIV positive immigrants. It’s like for everything we fought for about overturning the HIV ban, this is a back door to a reinstatement. It’s not actually like if you have HIV you can’t come to the U.S. But if you can’t support yourself medically, then you can’t come.”

There will still be a 30-60-day public comment period once the new rule is posted to the Federal Register. Until then advocates and lawyers are working to keep immigrant communities informed enough to carry on with their lives.

“Right now, people are afraid to move forward,” said Orr Jr. “The same thing the zero-tolerance policy did at the border, this is doing for immigrants that are here. It’s a message saying, don’t move forward… because you never know what’s going to happen to you.”